Citation Nr: 1518338
Decision Date: 04/29/15 Archive Date: 05/05/15
DOCKET NO. 12-27 562A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington
THE ISSUES
1. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD).
2. Entitlement to a total disability rating based on individual unemployability (TDIU).
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
S. Delhauer, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1967 to April 1970.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.
In an October 2012 rating decision, the RO granted an increase in the initial rating for the Veteran's posttraumatic stress disorder (PTSD) from 10 percent to 50 percent disabling, effective August 24, 2009. As the Veteran has not been granted the maximum benefit allowed for the entire appeal period, the claim of entitlement to an increased disability rating for PTSD is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993).
In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is part and parcel of an increased rating claim when such claim is raised by the record. The Veteran has indicated that he cannot work due to his service-connected PTSD and/or associated alcohol abuse. See October 2012 Veteran statement; August 2012 VA examination report. Accordingly, the Board has characterized the issues on appeal so as to include a claim for entitlement to TDIU.
This is a paperless file located on the Veterans Benefits Management System (VBMS). The Virtual VA paperless claims processing system also contains VA treatment records from the Spokane VA Medical Center (VAMC) dated March 2009 to July 2014; other documents are duplicative of the evidence of record, or are not relevant to the issues currently before the Board.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
REMAND
The Board initially notes that in the January 2010 rating decision, service connection was granted for PTSD. However, the Veteran has also been diagnosed with another nonservice-connected acquired psychiatric disorder, depressive disorder not otherwise specified (NOS). The Board is precluded from differentiating between symptomatology attributed to a service-connected disability and a nonservice-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Notably, in this case, the medical evidence of record indicated that the symptoms caused by the Veteran's nonservice-connected depressive disorder NOS cannot be distinguished from those caused by his service-connected PTSD, and in fact the August 2012 VA examiner found that the Veteran's depressive disorder NOS is a progression of his PTSD. Resolving all doubt in the Veteran's favor, VA will consider all of the Veteran's mental health symptoms to be related to his service-connected PTSD in the adjudication of this claim.
First, the evidence of record indicates there are outstanding VA treatment records. In his October 2012 substantive appeal, the Veteran indicated that he continues to attend group and individual therapy and receive medications from both the Spokane Veterans Outreach Center as well as the Spokane VAMC. A July 2014 VA mental health consultation note indicates the Veteran was still participating in group therapy at the Veterans Outreach Center, and that the Veteran was scheduled for an individual therapy session in August 2014. Treatment records from the Spokane Veterans Outreach Center associated with the evidentiary record are dated July 2009 to June 2010; Spokane VAMC treatment records are dated up to July 2014. On remand, the AOJ should obtain all outstanding treatment records from the Spokane Veterans Outreach Center, and all outstanding VA treatment records.
The evidence of record also indicates there are outstanding relevant private treatment records. In his October 2012 substantive appeal, the Veteran stated that he was undergoing an active substance abuse program, and that because of legal charge related to his alcohol abuse he could no longer work. A July 2014 VA primary care note stated that the Veteran was undergoing treatment at a private clinic for alcohol abuse. The Veteran's VA treatment records indicate that his alcohol use has been discussed in conjunction with his mental health treatment. See, e.g., June 2010 BHS telephone encounter note. The foregoing begs the question of whether the Veteran's alcoholism can be considered as part and parcel to his service-connected PTSD, or whether it can be entirely differentiated as a separate and distinct disability. On remand, therefore, the AOJ should make appropriate efforts to obtain the treatment records from the private clinic at which the Veteran has received treatment for alcohol abuse. Further, VA treatment records indicate the Veteran has private medical providers, to include a private primary care physician. See, e.g., July 2014 VA primary care note. On remand, the AOJ should ask the Veteran to identify any relevant private treatment, and make appropriate efforts to obtain any relevant private treatment records.
In a June 2010 statement, the Veteran requested that VA obtain records from his last employer regarding his job as a truck driver, to include the job description and regarding his job performance, as evidence of how he would isolate himself from his fellow workers. See also March 2010 Veteran statement. The Veteran included a VA Form 21-4142, Authorization and Consent to Release Information to VA, for records from his private employer. On remand, the AOJ should make appropriate efforts to obtain records from the Veteran's last employer regarding the type of work the Veteran performed, as well as the Veteran's job performance.
In his October 2012 substantive appeal, the Veteran stated he requires daily medication to control his symptoms, to include daily suicidal thoughts and severe depression. The Veteran also reported periods of rage and violence for no apparent reason. In a July 2014 statement, the Veteran's representative stated that the Veteran's PTSD was getting worse. The Veteran's representative reported that the Veteran was suffering from constant nightmares, flashbacks, panic attacks, and that he suffers from a great deal of anxiety. Further, the Veteran's representative reported the Veteran has considered suicide, that he has excessive rituals which interfere with his normal daily activities, and panic attacks and depression which affect his ability to function independently. Upon VA examination in August 2012, the Veteran reported one suicidal plan, and historical thoughts of death and dying after his most recent divorce, but not continuing suicidal ideation. The August 2012 VA examiner did not list near-continuous depression, suicidal ideation, or obsessional rituals among the Veteran's symptoms. Where a veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). On remand, the AOJ should afford the Veteran a new VA examination to determine the current severity of his service-connected PTSD.
As the Veteran's claim for TDIU is part and parcel of the claim for an increased disability rating for PTSD, and is therefore also before the Board, the Board finds that further development is necessary. On remand, the AOJ should provide the Veteran appropriate notice under the Veterans Claims Assistance Act of 2000 (VCAA) as to how to substantiate his TDIU claim, and should then take all necessary development actions.
Finally, in an April 2014 deferred rating decision, a Decision Review Officer (DRO) indicated that the Veteran's October 2012 statement would be accepted as a substantive appeal, in lieu of VA Form 9. The DRO requested that a letter be sent to the Veteran informing him that his appeal was being continued, and informing him of his hearing options. In June 2014, a letter was sent to the Veteran stating that he was on a list of persons waiting for a Travel Board hearing, based upon his request. The Board notes that the evidence of record does not indicate that the Veteran has requested a hearing before the Board. However, on remand, after the above issues have been readjudicated, if either benefit sought remains denied, the AOJ should clarify whether the Veteran wishes to request a hearing before the Board.
Accordingly, the case is REMANDED for the following action:
1. The AOJ should ensure that all required notification and development actions with respect to the issue of entitlement to TDIU are fully complied with and satisfied.
2. The AOJ should ask the Veteran to identify all private medical providers who have provided treatment for his PTSD, depression, and/or alcohol abuse. The AOJ should make appropriate efforts to obtain all outstanding private treatment records, to include from the private clinic at which the Veteran has received treatment for his alcohol abuse, as well as his private primary care physician, Dr. J.S., and/or physician's assistant, J.E. The Veteran's assistance should be requested as needed. All obtained records should be associated with the evidentiary record.
3. The AOJ should ask the Veteran to identify all Vet Centers at which he has sought treatment and/or counseling for his PTSD, depression, and/or alcohol abuse. The AOJ should undertake appropriate development to obtain all outstanding Vet Center records, to include from the Spokane Veterans Outreach Center from June 2010 to present. The Veteran's assistance should be requested as needed. All obtained records should be associated with the evidentiary record.
4. The AOJ should undertake appropriate development to obtain employment records from the Veteran's last employer, to include the Veteran's job description as well as his performance reports. The Veteran's assistance should be requested as needed. All obtained records should be associated with the evidentiary record.
5. For #1 through #4, the AOJ must perform all necessary follow-up indicated. If the records are not available, or a negative response is received, the AOJ should make a formal finding of unavailability, advise the Veteran and his representative of the status of his records, and give the Veteran the opportunity to obtain the records on his own.
6. The AOJ should obtain all outstanding VA treatment records, to include all treatment records from the Spokane VAMC dated July 2014 to present. All obtained records should be associated with the evidentiary record.
7. After #1 through #6 have been completed, and after any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the current severity and manifestations of his service-connected PTSD. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place.
After reviewing the record, interviewing the Veteran, and performing all necessary tests and studies, the examiner the VA examiner should offer his/her opinion with supporting rationale as to the following inquiries:
a) Please ascertain the severity and all current manifestations of the Veteran's service-connected PTSD. The examiner should provide an opinion concerning the current degree of social and occupational impairment resulting from the service-connected PTSD. In addition, the examiner should provide a global assessment of functioning score, with an explanation of the significance of the score assigned.
For the purposes of the opinion being sought, the examiner should specifically address the Veteran's October 2012 substantive appeal, and the July 2014 statement from the Veteran's representative, reporting that the Veteran requires daily medication to control his symptoms, to include daily suicidal thoughts and severe depression; that the Veteran experiences periods of rage and violence for no apparent reason; that the Veteran suffers from constant nightmares, flashbacks, panic attacks, and that he suffers from a great deal of anxiety; that the Veteran has excessive rituals which interfere with his normal daily activities; and that the Veteran suffers panic attacks and depression which affect his ability to function independently.
b) In order to determine whether the Veteran's alcoholism can be considered as part and parcel to his service-connected PTSD, or whether it can be entirely differentiated as a separate and distinct disability, the examiner should answer the following two questions:
Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's alcohol use and/or abuse was caused by his service-connected PTSD?
Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's alcohol use and/or abuse is aggravated by his service-connected PTSD?
The examiner should specifically address the June 2010 letter from the Veteran's third wife discussing his alcohol use, the Veteran's October 2012 substantive appeal stating that he can no longer get a trucking job because of a DUI charge, and the notations in the Veteran's VA treatment records regarding his alcohol use and/or abuse.
Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation.
c) The examiner should opine as to whether the Veteran is precluded from obtaining or retaining substantially gainful employment due to his service-connected disabilities.
The examiner should specifically address the degree to which the Veteran's functional limitations due to his service-connected PTSD, bilateral hearing loss, and tinnitus jointly relate to his ability to function in a work setting and to perform work tasks.
The complete rationale for all opinions should be set forth. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection.
If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered.
8. After the above development has been completed, adjudicate the claims. If either benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case. The AOJ should also clarify whether the Veteran requests a hearing before the Board. The case should then be returned to the Board.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).